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73.Similarly, Hon'ble Supreme Court of India in Judgment titled as 'Ravirala Laxmaiah Vs. State of Andhra Pradesh cited as (2013) 9 SCC 283' has held that:-

"where the accused has been seen with the deceased victim, it become the duty of the accused to explain the circumstances under which the death of victim had occurred".

74. In the present case, PW-2 Shiv Kumar Sharma has specifically deposed that he had seen deceased Lakhan Singh on 12.05.2012 at about 10-10:30 PM with the accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and FIR No. 97/2012 , PS: Prasad Nagar, State Vs. Ram Gopal Rai & Ors. Page No 36 of 75 Sanjay Yadav. He has correctly identified accused Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav in the court. In his cross-examination, he has specifically stated that he probably saw accused Ram Gopal Rai @ Ram Iqbal Rai for the first time in the month of April, 2012 and at that time, he was present with deceased Lakhan Singh. PW-2 Shiv Kumar Sharma is an independent witness. Thus, PW-2 Sh. Shiv Kumar Sharma already knew accused Ram Gopal Rai but he did not know accused Sanjay Yadav and that is why he only named accused Ram Gopal Rai in his statement given to the Police and told the description of both the accused persons which has matched with their actual description.

76. Nothing has come on record against PW-2 Shiv Kumar Sharma to show that he had any motive to falsely implicate accused person Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav in the present case. Since this fact has come on record that deceased Lakhan Singh was lastly seen alive in the company of accused persons Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav, the burden has been shifted on accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav to prove as to when deceased parted from their company. Both accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav have not taken any defence in this regard.

78. (iii) Refusal of TIP by accused Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav:-

After their arrest, accused persons namely Ram Gopal Rai @ Ram Iqbal Rai as well as Sanjay Yadav were kept in muffled face and an application for their TIP was filed before the court of Ld. MM. PW-37 Sh. Chander Mohan Ld. MM has proved the TIP proceedings of accused persons namely Ram Gopal Rai @ Ram Iqbal Rai and Sanjay Yadav Ex. PW-37/A to PW_37/E. PW-37 Sh. Chander Mohan deposed that both the accused persons had refused to participate in the TIP proceedings. PW-2 Shiv Kumar could have identified them in the TIP proceedings which was refused by them and hence, an adverse inference may be drawn against both the accused persons u/s 114 of Indian Evidence Act. It is pertinent to mention that even before their arrest, PW-2 Sh. Shiv Kumar Sharma had given their description to the Police in his statement recorded under Sec. 161 Cr.PC and the said description has matched with dscription of accused persons. He also correctly identified accused Ram Gopal Rai and Sanjay Yadav in the court during the trial.

(vi) From 11.05.2012 to 12.05.2012 and on 14.05.2012, accused Seema Devi had used her mobile phone having IMEI no. 910040873135570 with mobile phone no. 8826627994 and during this period, she was having conversation with deceased Lakhan Singh, accused Sanjay Yadav several times.

119. Thus, on the basis of call records, it can be concluded that the last call on the mobile phone of deceased Lakhan Singh was made by accused Sanjay Yadav on 12.05.2012 at about 21:22 PM and deceased Lakhan Singh was lastly seen alive on that day at about 10-10:30 PM by PW-2 Shiv Kumar Sharma in the company of accused Sanjay Yadav and accused Ram Gopal Rai @ Ram Iqbal Rai. Accused Seema Devi was also in regular touch with accused Sanjay Yadav, Ram Gopal Rai @ Ram Iqbal Rai and deceased Lakhan Singh. Accused persons have not given any explanation with respect to the said telephonic conversation either in the cross examination of prosecution witnesses or in their statement u/s 313 Cr.PC and they have failed to discharge burden placed upon them u/s 106 of Indian Evidence Act, 1872.